CRA Process Has Become a Cudgel That Republicans Are Ready to Use

The CRA was largely unused until the first Trump administration, said DLA Piper’s Peter Karanjia, a former FCC deputy general counsel. “My sense is people didn’t think about" the CRA before the first Trump administration, and "it was sort of an untapped tool,” he said. It “became very prominent when it was successfully wielded” under Trump.

Republicans filed a CRA resolution of disapproval last month to undo a July 2024 FCC order that lets schools and libraries use E-rate support for off-premises Wi-Fi hot spots and wireless internet services (see 2501270043).

Davis Wright’s Thaila Sundaresan, a former FCC attorney, said she expects additional CRA use under Trump. He “has been very clear that his administration will seek to reverse many Biden administration policies, and these reversals will include regulations, which are one of the most typical ways in which administrations advance their policy priorities,” she said. What exactly he will attack through a CRA “remains to be seen.”

Questions abound about the extent to which a CRA resolution prevents a later administration from proposing rules similar to those that Congress already blocked, Karanjia said. Use of the CRA “illustrates the potency of this ... process,” he said, but it comes with time limits and can be used only in limited cases.

Changing rules through new regulations offers “the advantage of starting afresh, trying to resolve the issue in a coherent way,” Karanjia said. The disadvantage is that agencies must comply with the Administrative Procedure Act, with its notice and comment requirements, he said. If agencies “want to move fast,” that “can be an obstacle."

Sundaresan said the last FCC’s net neutrality rules would have been an obvious target of a Republican FCC had the rules not already been blocked by the 6th U.S. Circuit Court of Appeals before they could take effect (see 2501020047).

Over the past decade, presidential administrations have been more likely than they were before to shift the government’s position on issues before appellate courts, Karanjia noted. “The background principle” has always been “continuity,” he said. “A lot of the cases are not politically charged and [are] somewhat routine, run-of-the-mill issues.” The government has generally viewed “consistency as a good thing” in front of the courts, he said.

Courts understand “there will be cases where changes of administration will have consequences … and there will be policy ramifications that flow from that,” Karanjia added. He cited one example that happened Tuesday, when the FCC decided not to defend the inclusion of a nonbinary gender category in its broadcaster workplace diversity data collection shortly before the start of oral argument at the 5th U.S. Circuit Court of Appeals (see 2502040061).

Counsel for the FCC defended other parts of the order, taking a “more nuanced position” than DOJ, which had “disavowed” support in general (see 2501310056), Karanjia said. Judges who heard the argument seemed to be trying to figure out whether they should take the time to develop an opinion or whether the FCC would just abandon the order, he said. “It can be difficult for FCC counsel because obviously, the instructions were to disavow two paragraphs in the order” while defending the remainder.

“Bottom line,” Sundaresan said: Courts “are very accustomed” to changes in administrations and their political positions.

People think that staff at the FCC changes every time a new president takes office, but that isn’t true, she said. “The majority of FCC attorneys are career attorneys who have been at the agency for decades,” she said: “Administrations come and go,” and “what is consistent is really continuity of staff.” Sundaresan noted that most issues before the FCC aren’t contentious.